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A TREATISE 



l^ato 0f t|e American |[fklli0n, 



OUR TRUE POLICY, DOMESTIC AND FOREIGN. 



By BANIEL GARDITER, Jurist, 

AuTitoa OF "Gard>jer's Institutes of Isternatioxal, Inter-State and American 
PtTBUo Law," and Member of the New- York Bak. 



'1 ,^.., , 1^-^-^ 



^^ i...W ^ 



NetD-f ork : 

JOHN W. AMERMAN, PRINTER, 
No. 47 Cedar Street. 

1862. 



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;^JEI 



A TREATISE 



Jato of i\t g^nuritan ^icbtllion, 



OUR TRUE POLICY, DOMESTIC AND FOREIGN. 



By DANISL GARDNER, Jurist, 

-A-tTTnoB 07 "'G.-vedseb's Institutes op Imternational, Intee-State and American 
PtTBLic Law," and Member op the New- York Bar. 



Ncu3-l!)ork : 

JOHN W. A MERMAN, PRINTER, 
No. 47 Cedar Street. 

1862. 









IN 3Me:]MOI1ia]m. 



The author acknowledges, with pleasure, consultations with his distin- 
guished friend, the Hon. William Curtis Noyes, on the subjects treated of in 
this Pamphlet, and for which, and for his lofty patriotism, and liigh powers 
and learning as a lawyer, devoted to hia country's cause, the author desires to 
record his gratitude and high regard. 



A TREATISE 



fall) of ilji^ l^mcritait ^ithUian, 



OUR TRUE POLICY, DOMESTIC AND FOREIGN. 



MARTIAL POWER OF PRESIDENT. 

The opinion and documents in the case of Benedict, before 
Mr. Justice Hall, District Judge of the Northern District of 
^New-York, on a writ of habeas corpus, are before us. 

The proceedings and opinion of Chief Justice Taney, in 
the habeas corpus case of Merriman, the bridge-burner and 
warlike rebel, are also before us. 

The opinion of Hon. Benjamin K. Curtis, late Justice of the 
Supreme Court of the United States, is before us. 

Chief- Justice Taney, Ex-Judge Curtis and Mr. Justice Hall, 
seem not to be aware of, or they ignore the fact, thai aplenary 
executive and inartial discretionary power is conferred on 
the Piesidenthy the National Constitution, (art. 2, § 1, subd. 
1, 8, 9 ; § 2, subd. 1 ; § 3, art. 4, § 4,) as now settled by Con- 
gress in Gen. Jackson's New-Orleans habeas corpus and mar- 
tial law case, (5 U. S. Stat, at L. G51,) and by Justice Nel- 
son's decision at a New- York United States Circuit Court, 
in Duraut vs. Hollins, an action for injury done by Captain 
Hollius firing on Greytown, by order of President Pierce, 
The learned judge held,, that no action would lie against the 
captain, as the President's discretion was supreme and final ; 
that the command of the President protected Hollins, as he 
obeyed a martial order of the President, which no court 



could review or disregard. This act of Congress, and the 
decision of Mr. Justice Xelson and the Circuit Court, estab- 
lish a full discretionary martial power, which, in war and in 
niartial conflicts, is vested in the President by the Constitu- 
tion of the Union, and with which no court or judge can in- 
terfere, revise or annul. 

These gentlemen and some able jurists, not seeing the dis- 
tinction between civil and martial treasons, in the nature of 
the case, suppose that the Constitution provides for the trial 
and punishment of all treasons ; whereas, civil only, and not 
such as now abound, are there treated of. 

The assassinations at Baltimore, of 19th April, 1861, and 
hundreds of murders of loyal men in Rebeldora, go unpun- 
ished, as the sword and martial law alone can punish them. 
The murderers of the Massachusetts soldiers now repose safely 
as neighbors of Chief- Justice Taney. 

They also ignore the numerous decisions of the National 
Supreme Court, including Chief-Justice Taney, decLiring 
that the President had a constitutional martial authority to 
govern conquered Mexico by his martial'officers and martial 
discretion, establish duties and collect them by his military 
officers ; and that, where the President has a discretionary, 
executive or martial authority, his decision is final, and no 
court can, by any proceeding, revise it or set it aside. (See 
authorities below.) 

Tliey suppose that the national judges can, hy a writ of 
habeas corpus^ take supreme control over the President and 
his officers of the army and navy^ in cases martial and naval. 
This is a mistake, as persons within military custody and 
jurisdiction, for martial offences, are beyond the civil Code, 
and subject to the President's martial power, and to his mili- 
tary commissions and courts-martial. In these martial cases 
the civil judge or court has no authority. 

These opinions of the three learned gentlemen are against 
the law, as settled by authority, and their publication has 
given aid and comfort to the rebellion. 

The judiciary, according to these gentlemen, have a sxiper- 
visory supreme poxoer over all martial arrests^ and all martial 
or exectUive acts of the President in all cases, even though the 
Constitution of the Union has conferred on hira a sup)reme 
discretion, to he exercised for the preservation and protection 
of the American pyeople, and as their elected representative 
President. 

If this is true during our civil war with armed rebels, at 
one time covering one-third of our territory, with traitors in 
Congress, in official and other influential positions, our Con- 



stitution is ^felo de se, aud has provided, as that of Poland 
did, for its own destruction. 

There is a hold daring on the part of Cliief-Justice Taney 
and Mr. Justice Ilall to set up for themselves a power, by 
issuing a writ, to command the commander-in-chief, our 
major-generals and other military oJSicers, to omit all mili- 
tary movements, and bring before the judges a spy or a 
bridge-burner, like Merriman, who acted in aid of the rebels 
seekino; to insure their takino- Washinsfton, and await the 
si(2)crio7' orders of Justices Taney or Hall. County state 
judges have had the audacity to assume a like jurisdiction 
over the martial acts of the commander-in-chief of our 
armies, on the principles of these gentlemen. A Kings 
County judge tried to deliver this martial offender, by habeas 
corpus, from the power of martial law, as Mr. Taney had be- 
fore done, and both failed, as their writs were properly dis- 
regarded. 

Our government, like every other, has a plenary power 
of self-preservation, by aid of the courts civil in peace, and 
by martial power in war. In cases of invasion or insurrec- 
tion, the President or his generals, by his authority or by his 
approval, may do all acts judged to be a military necessity, 
both as to property and persons, and the Code civil has 
nothing to do with such cases. The civil Code and its judges 
are powerless to put down this mighty rebellion, and the 
armed power, the martial Code of necessity, supersedes the 
civil. 

Congress is restrained from passing a general law suspend- 
ing the habeas corims, except in cases of rebellion or inva- 
sion. Such a general law, if passed, would be sweeping, and 
is wholly different from martial law, which is limited to 
martial offenders, to specified places, and to periods of great 
danger, and, so far as necessary, supersedes the civil law 
during the perils of war. When this war ceases, the Code 
civil is restored fully. 

The martial power acts at once, and is conferred on the 
President without limit; and this discretionary power is con- 
fided to him both as civil and military chief; and no judge 
or court can review it, or interfere with it by habeas corpus 
or otherwise. (See Ch. J. Parker's habeas corpus and mar- 
tial law article in the North American Review fur October, 
ISGl, 1 Crunch R. 165, 28.) Mr. Justice Nelson, of the Su- 
preme Court of the Union, so held in the United States Cir- 
cuit Court, in New- York, in Durant vs. Hollins, (1 Dall.362 ; 
17 John. R. 52 ; Upton's Mar. Warf. and Prize, pp. 84-88 ; 
Attorney • General Wii'fs Opinio7i in Capt. BelVs case, Op. 



Atty. Gens. A. D. 1841, pp. 371-8 ; Gardner's Inst. 78, 333, 
352, 361, 195, 205, 555, 600— 608 /o?" decisions of English 
mid American courts. See 13 How. TJ. S. R. 115, 128; 12 
Ih. 524; 16 Ih. 164; 9 Ih. 603, 614; 7 Ih. 39, 45 ; 11 Ih. 
272 ; 20 11. 135 ; 10 II. 504 ; 1 Gallis. 295 ; 1 Curtis C. C. 
R. 308; Const. U. S., art. 2, §§1, 2, 3. See 8 Cranch R. 
110 ; 4 Wheat. 254; 12 lb. 19.) Professor Parsons, of Cam- 
bridge, Massachusetts, Las given Lis assent to our doctrines 
in a brief reply to Ex- Judge Curtis, and lie truly declares 
that the rebels, seeking to destroy our national Constitution 
and all law, have forfeited all rights of person and property 
under the Union, State and national laws they have repudi- 
ated. The opinion of this eminent jurist fully accords with 
the settled law. 

The United States District Court for Vermont has assented 
to our doctrine, in Field's case, as to the President's martial 
power. The National District Court for the Southern Dis- 
trict of JS'ew-York has acted in accordance with our above 
explanations of the law, as might have been expected from 
so distinguished a jurist as Judge Betts. 

General Ilalleck's Int. I. and I. of War., pp. 375 — 380 in 
point. The declaratory act of Congress, approving of General 
Jackson's declaration of martial law at New-Orleans, in 1815, 
and removing Judge Hall beyond his lines for sending a 
habeas corpus to take from him an editor, arrested for mar- 
tial reasons, passed in 1844. (5 U. S. St. at L. 651.) By 
this act, the ^1,000 fine, and interest, were ordered repaid to 
the patriotic general out of the national treasury. See the 
opinion of Edward Livingston, an eminent jurist, justifying 
the acts of General Jackson. He was the general's aid and 
adviser in all the martial law proceedings, and advised the 
same, and the disregard of the judge's habeas corpus. Here 
is a declaratory act athrming the President's and his officers' 
martial power, as above asserted. The act of Congress set- 
tles the law. 

The King's Bench, in England, (4 Term R. 796,) held that 
it was a principle of the common, as well as the civil law, 
that the safety of the people was the supreme law ', and that 
an officer erecting bulwarks, forts, &c., on private property, 
was not liable to an action, but the only claim was on govern- 
ment. Upon the same principle the Supreme Court of New- 
York, by Chief-Justice Spencer, decided that the destruction 
of a private vessel, to keep it from the enemy, gave no right 
of action; and so the Supreme Court of Pennsylvania iield. 
(17 Johns. 52; 1 Doll. 362.) Of course, they held that 
martial law superseded the constitutional principle that a 



man's property could only be taken from him by a decree of 
a court. 

In the cases above referred to, Chief-Justice Taney and his 
court held that the President'' s martial power was a C07isti- 
tutional aaihority in ivar^ and superseded the civil Code. 
(See above authorities.) 

John Quincy Adams, one of the ablest publicists of our 
country, in three speeclies in Congress, in 1836, ISil and 
1842, declared that the President, in case of invasion or in- 
surrection, had legal authority, as a war measure, to emanci- 
pate all the slaves in the Union, by his simple, potent order 
as commander-in-chief. Gov. Thomas Jefferson, an able ju- 
rist and publicist, declared that the British seizure of some 
thirty of his Yirgiiiia slaves was, by the law of nations, legal, 
if they were emancipated. {Jefferson^s Letter to Dr. Gor- 
don., Jeff.h Works.) Here, then, we have conclusive au- 
thority in favor of the President's war emancipation procla- 
mation. The opinions of these eminent men are conclusive 
on this point. 

General Bolivar, by his war power, abolished slavery in 
Colombia, and the emancipation was permanent. 

The three speeches of Mr. Adams are in point, as the fol- 
lowing extracts show. He said in his speech of May 25th, 
1836, to the representatives of the slave-oligarchy specially, 
in the House of Representatives of the Union : " From the 
" instant that your slaveholding States become the theatre of 
" war, civil, servile or foreign, from that instant, war powers 
^^ of Congress extend to interference with slavery in every 
" way in which it can be interfered with, from a claim of in- 
" demnity for slaves taken or destroyed, to the cession of a 
" State, burdened with slavery, to a foreign power." 

On, the ITth day of June, 1811, this eminent and noble 
statesman declared to the House, that in a rebellion like this, 
the supreme government would have the power of general 
emancipation. 

In 181:2, this venerable statesman said to the House: 
" I lay this down as the law of nations. I say that the 
" military authority takes, for the time, the place of all 
" mwiiciijal institutions, slavery among the rest. Under 
" that state of things, so far i'rom its being true that the States 
'■^ \\\\QVQ slavery exists have the exclusive management of the 
^'■subject, not only the Presideiit of the United States hut the 
" commander of the array has power to order the imiversal 
" emancipation of the slaves.''"' 

And then, again, he announces in words further applicable 
to the present hour : 



8 

" Kor is this a mere theoretic statement. Slavery was 
" abolished in Colombia, first, by the Spanish General 
" Murillo, and secondly, by the American General Bolivar. 
"It was abolished by virtue of a military command given at 
" the head of the army, and its abolition continues to be law 
" to this day." 

Lord Dunmore, British Colonial Governor of Virginia, 
I^ovember 7, 1775, issued a proclamation to slaves and in- 
dented servants, oifering them freedom and arms if they 
should join his standard and aid in putting down the Ameri- 
can rebellion. They flocked to him and gave him a temporary 
ascendency. (See MarshalVs Life of Washington. Ij.1,c. 4.) 

When the Constitution was formed, Generals Washington 
and Hamilton probably caused the insertion of the principle 
that the President should be the commander-in-chief of our 
navy and army, and of the militia in service, so ns to clothe 
him with the martial power necessary to a state of M^ar, i. e., 
with the power to supersede the Code civil, so far as he 
judged martial power essential to the public safety. The 
iloman maxim was Leges sihninr inter anna. In war the 
martial supersedes the civil, as far as the lioman dictator 
judged necessary to the public safety. All nations have 
adopted it and acted on it. It is a doctrine essential to de- 
fend a nation from foreign and domestic foes. Gen. Wilk- 
inson declared martial law at New-Orleans to put down 
Burr's conspiracy ; Gen. Jackson did the same to defend 
!N"ew-Orleans and the valley of the Mississippi from British 
conquest, and the then Presidents and their cabinets ap- 
proved these acts; and the people of the United States have 
approved them. President Lincoln resorts to martial law 
to put down the largest rebellion history records — the slave- 
holders^ rebellion. The constitutional power exists in .the 
President and his military officers, and in those acting by 
his order, to substitute the martial for the civil authority so 
far as the President and his commanders judge it necessary 
to suppress the rebellion. This is the law as settled by 
Congress, and by several Presidents and their cabinets. 
President Lincoln follows the example of bis predecessors 
in office. 

No errors of judicial gentlemen, whether from sympathies, 
political feeling or other motive, can alter the fact, that our 
Constitution contains a Code martial and a Code civil ; and 
each must perform its functions so as to ensure the public 
safety in peace and in war. 



LAW OF THE REBELLION. 

A few propositions will explain tlie law of this rebellion : 

1. The national and State courts have recognised the con- 
stitutional martial power of the President and his officers, in 
time of war, to supersede the civil Code, including constitu- 
tional civil provisions to the extent of adjudged military ne- 
cessities, and to act instanter for military reasons. Hence 
our 2:»rize confiscations and arrests. 

2. That treason against our Union is of two classes, one 
civil, the punishment and process of which the Constitution 
regulates. The other is martial, such as an armed rebellion 
to destroy our republic. It includes all persons within the 
limits of the United States who in any way or in any degree 
intentionally aid the same, and all Americans on the high 
seas, or in foreign countries, who give assistance there to the 
rebel cause. 

3. All acts that tend to injure our array or navy, in any 
manner, or that, in any way, aid a foreign belligerent, or an 
armed rebellion, constitutes a martial treason, and may be 
tried and punished by military commission or court-martial, 
by death or imprisonment, as seems just. In this class are 
included the murderers of the loyal volunteers in Baltimore 
on the 19th of April, 18G1, Merriman, the Baltimore mar- 
shal, Jeff. Davis, Floyd, Brecheuridge and others. 

As war on a great scale has been made by these persons, 
and a general confiscation ordered by the traitors against all 
loyal property, the President and Congress may lawlully con- 
fiscate, by the lex talionis, all the slaves, plantations and 
other property of rebels, wherever found. It would be a just 
retribution and a sensible war measure. 

The lex talionis fully authorizes the President, as com- 
mander-in-chief, to meet the universal confiscation of loyal 
^rojperty in reheldom, and the assassination of loyal men 
there, as well as American prisoners, by applying to all rebel 
property and persons the same rule, by way of just retalia- 
tion. ( Yattel, B. 3, c. 8, s. 142 ; Wheat. Int. L. 1\ 4, c. 1, 
ss. l-Jr; Gard. Inst 517, 609, 510, 565, 618.) 

If the perverse mania of the traitors continues until their 
oppressed slaves, by a just retaliation, rise forcibly upon their 
semi-savage masters, and resist them with the same bloody 
scenes and havoc they have occasioned, without cause, to 
loyal American citizens, it will add one more to the historic 
examples of self-inflicted punishment, administered by God's 



10 

justice upon the wicked, as a necessary result of their own 
crimes. 

So perished the Koman commonwealth by wars of con- 
quest and by slavery, by the just retributions of God's provi- 
dence. These crimes of that miglity nation were the clay 
foot that the prophet Daniel saw, half supporting the gigantic 
iron image that foreshadowed Roman power, and its decay 
and fall. 

So will perish American slavery and the American slave- 
oligarchy, with all its pride, its cruelty, its corruption and 
its dominion. 

4. The rebels, having rcpndiaied and destroyed their title- 
deeds to their slaves^ by nullifying in all rebeldom the State 
Union governments, and the United States Constitutional 
guarantee, have freed their slaves, agreeable to the principles 
of Josephine's case, decided by the Supreme Court of Louisi- 
ana. (1 Louis. An. J?. 329.) 

Notwithstanding this, the President has given the rebel 
slaveholders until January 1st, 1863, to return to their allegi- 
ance ; and in that event he leaves the status of the slaves to 
the courts. 

The fate of slavery and of the rebels is in their own hands 
until January next. 

5. All martial rebels aiding the enemy in any way, or im- 
peding our government or its forces in suppressing the rebel- 
lion, by intelligence, by money, by decrying the war, by im- 
peding enlisting, by refusing to call out forces as Magofl&n 
did in Kentucky, all such rebels and their property are sub- 
jects for a military commission and martial confiscations, 
upon the principle of the lex taliojiis. The rebel mayor who 
aided, by his official power. Southern rebels to arms, is with- 
in the principle. 

6. Self-preservation is the first law of nature, and belongs 
to all nations alike; and martial law is proclaimed and en- 
forced among all nations. Great Britain declared freedom 
to Southern slaves at the Revolution as a war measure, and 
Jelferson declared it lawful if the slaves were emancipated. 

If martial law is not enforced, rebel assassins and traitors 
will escape punishment wholly, as those Baltimoreans of 
April 19th, 18G1, have done, 

7. The President iwodaims martial law to prevent the dis- 
solution of the Union, to preserve our free institutions, and 
to put down a retellion got up ly ari unholy triumvi7'ate, 
composed of military aspirants, politiccd demagogues and 
Southern slaveholders. The motive is patriotic, a7id his acts 
are legal and constitutional. 



11 



RIGHTS OF ^YAR. 



8. As the slaveholders and their allies liave gotten up a 
great civil war, two classes of rights arise against the rebels, 
one under the law of nations, adopted as part of our Consti- 
tution under the war-powers of the President and Congress, 
and the other under the civil Code against treason. {Const. 

U. S. art. 2, § 1, subds. 1, 8, 9 ; § 2, subd. 1 ; § 3. Art. 4, 
§ 4. Art. 1, § 8, subds. 1, 2, 10, 11, 12, 13, 14, 15, 17. Tal- 
bot V. Seaman, 1 Cranch, 28, 31 ; Brown v. United States, 8 
lb. 110 ; the Rapid, 1 Gallis. 295 ; the Francis, 1 Ih. 445 ; the 
Emulous, 1 Jh. 563 ; 14 Fet. 570 ; 5 V. S. Si. L. 539 ; Gard. 
Inst. 98, 286-7, 52, 194-5, 208-9, 293, 333, 3^)3, and autho- 
rities cited. See, also, Const. U. S. art. 3, § 3, subds. 1, 2 ; Up- 
ton'' s Maritiine Warfare aiid Prize., 212.) Mr. Justice 
Sprague, District Judge of the United States for Massachu- 
setts, laid down this doctrine in these words : " The United 
" States have full belligerent rights, which are in no degree 
" impaired by the fact that their enemies owe allegiance, 
" and liave added the guilt of treason to that of unjust war." 
So the national Circuit and District Courts generallv have 
held. 

As a consequence, martial courts and military commissions, 
and the President, as commander-in-chief, and his generals, 
may seize the realty and personalty of rebels, and all title 
thereto, under the law of nations, as General Butler has pro- 
perly done in Louisiana, and permanently hold the same as 
national property, in fee, by a perfect title. ( Vaitel, B. 3, c. 
8, § 142 ; Wheat. Int. L. P. 4, c. 1, §§ 1-4 ; Gard. Inst. 517, 
oOy, 510, 565, 618, 484 ; 7 Alexander Hamilton's W. 346- 
351 ; 8 Cranch, 110; 3 Doll. 210, 222, 227, 266.) 

So, upon conquest of any rebel State or its public domain, 
and holding same until the rebellion is crushed out, it be- 
comes, with all private realty so taken and held, a permanent 
part of the public domain of the United States. {Ih. and 4 

Wheat. 254 ; Wheat. Hist. L. N. 572 ; Gard. Inst. 585.) 

The third section, subd. 2 of art. 3 of the Constitution of 
the United States, which declares that " Congress shall have 
" power to declare the punishment of treason," and that " no 
'^ attainder of treason shall work corruption of blood or for- 
" feiture, except during the life of the person attainted," ap- 
plies only as a restraint U})0U the power of Congress, and to 
civil treasons prosecuted before the courts, and not to a mighty 
civil war where the national courts are powerless, and some 
twenty national judges of the Supreme Court of the Union, 



12 

its Circuit and District Courts, have joined the rebellion, 
either openly, or retain their judicial positions to protect 
their rebel allies by writs of habeas corpus and otherwise, in 
their persons and their properties, by prostituted judgments, 
from deserved martial as well as civil confiscations. {Gard. 
Inst. 296, 371, 3U-31G ; 7 Fet. 431.) 

NATIONAL JURISDICTION OVER EEBELDOM. 

9. It is settled by the unanimous decision of the national 
Supreme Court, in the American Insurance Co. v. Canter, (1 
Pet. 5i'2, 54:3, 540,) that where there was no existing legal 
Utiion State government, as in Florida, the case before the 
court, and the place, was within the limits of the United 
States, such territory was subject to the plenary legislation 
of Congress and to the power of the national administration. 
{Gard. Inst. 169, 170, 171, 172; Cojist. U. S. art. 1, § 8, 
subd. 1 ; 12 Pet. 619 ; Gard. Inst. 295.) 

So, Congress may legislate fully for the territory now oc- 
cupied by rebeldom and its so-called States and Confederacy, 
now, as well as when the rebellion is crushed out, and its 
duty is to pass all laws necessary " to provide for the common 
" defence and general welfare of the tfnited States.''^ {Const. 
art. 1, § 8, subd. 1.) The Ist and 17th subdivisions of section 8, 
art. 1, confer plenary power on Congress. {Gard. Inst. 297.) 



SLAV ERT — EM AN CIP ATION. 



10. Slavery curses master and slave, and the soil the poor 
bondman cultivates. It is condemned hy our Declaration of 
Indefendence.f and was tolerated hy our revolutio7iary fatJiers 
as a tempjorary evil to he soon removed hy emancipation. 
Such were the views of Washington, Jefferson, Alexander 
Hamilton, Benjamin Franklin, Monroe, John Adams, and 
nearly all the founders of our government and framers of its 
Constitution held these doctrines. (See Jefferson^ s Notes on 
Yirginia.^ the Declaration of Indepiendence and Jef'erso7i's 
Letter of 1814:,) in which he declaredithat " the love of justice 
" and the love of country plead equally the caused'' (emancipa- 
tion) " of these people / and it is a moral reproach to us that 
" they shoxdd have pjleaded it so long in vain.''' Washington 
said tiiat he was for the '■'■ aholition" of slavery ; and he added, 
" It heing a wrong., my first wishes are to see some plan 
'^ adopted hy which slavery may he aholished hy law.'''' 

At a late day in the Constitutional Convention of Virginia, 
presided over by Mr. Monroe, late President of the Union, a 



13 

friend of the abolition of slavery, similar sentiments were 
expressed bj many of the leading men of the convention. 
Jetferson, in his Notes on Yirglnia^ had declared slavery a 
curse to the whites and blacks alike — a curse social, moral 
and political. One of the ablest men of this convention, 
inspired by tiie spirit of Washington and Jefferson, boldly 
declared before the convention in debate, that slavery was a 
nuisance, and that the State had a right to abate it ivithout 
compensation for that reason. So, this nuisance was abated 
in New-England, Xew-York, New-Jersey, Pennsylvania and 
the territory northwest of the Ohio, and so it ought to be 
throughout the United States, from the Atlantic Ocean to the 
Pacific, so that no slave should tread the soil of our republic. 
The voice of Europe is against slavery. (See Westminster 
Revievj of October, 1S62, on the slave power ; Prof. Cairnes 
on same, there reviewed, and Count de Gasparin on same, 
and the treaties of Yienua and our treaty with Great Britain 
of _lSi2, (8 U. S. St. L. 5TG, Art. S, 9,) and like late treaty 
enforcing it fully.) 

11. Rebeldom has been shown to be part of the national 
territory, and subject to its plenary legislation ; and it follows 
that the acts of Congress of 1862, excluding slavery from all 
our national territory, emancipated all slaves then within the 
rebel States. So that by acts of Congress, one with j)artial 
compensation, and the others without, there was a universal 
emancipation and abolition of slavery in the District of Co- 
lumbia, and in all our national territories, the area of rebel- 
dom included. {Acts Cong. 1862; Laws Cong.^ U. S. St. L. 
376, 432, 590-1.) 

12. The President's Proclamation of Emancipation, so 
called, merely declares that, by his supreme martial power, 
he will recognise all black men inhabiting any part of our 
Union where rebels shall be carrying on civil war against 
tiie government of the United States on the 1st of January, 
1863, as free men ; and that from that day rebel masters will 
cease to own the slaves of fighting rebeldom. It properlj' 
recognises the freedom already existing, by virtue of seces- 
sion and the territorial Emancipation Act of 1862. 

So, as we have shown, first, emancipation was effected 
throughout rebeldom by secession ; secondly, by acts of Con- 
gress of 1862 ; and thirdly, by the President's proclamation of 
recognition. The latter is, in legal effect, a declaration of 
what is already a completed emancipation by our and by 
European public law. {Oard. Inst. 479, 480, 491, 492. 
Amistad Case, 15 Pet. 518, 595.) 

The jyroclamation loas a war measure only^ and it is essen- 



14 

iial as a means of crushing out this rehellion. Its effect will 
be to take eight liundred tliousand fighting and working men 
from the rebels ; and their emancipation being assured by 
the President, they will work and fight for our republic in- 
stead of working rebel plantations, raising corn, wheat, cot- 
ton and rice, and building rebel fortifications, working rebel 
guns, and sustaining traitor aholitionists in destroying our 
Union and free institutions, {^qq Livermore's Hist. lies. ^ 
Boston.) 

The rebels have forced the abolition of slavery themselves. 
Beauregard should call them " abolitionists," instead of act- 
ing as chorister to pitch this tune for some of James Buchan- 
an's disciples, most of whom, in the last presidential election, 
voted for the traitors, Bell and Breckenridge, now in arms 
against the Union. 



HOW SHALL WE CRUSH THIS HTDKA OF EEBELLION ? 

13. By inviting the slaves of rebels to take arms and defend 
the freedom we give them. Lord Dunmore, royal governor, 
November 7th, 1775, issued a proclamation calling all slaves 
and indentured apprentices of Virginia to join his standard 
and aid the British troops to put down the American rebel- 
lion ; and large numbers fled to him and received arms, and 
served against the patriotic Virginians. {MarshaWs Life of 
Washington^ B. 1 c. -i.) 

Our patriotic fathers met this policy by a similar one. The 
raising and organizing in arms Ijlack forces, slaves and free 
blacks, for the defence of our republic, was approved by Con- 
gress ; and that body passed resolutions requesting the States to 
arm and equip these slaves, and to grant them their fieedoni as 
an inducement and just reward for their military services in 
defence of free institutions. Generals Hamilton and Greene, 
Col. Laurens, of South Carolina, and James Madison, and 
southern as well as northern whig officei"S and people, agreed 
in this policy and commended it. Several of our States had 
black regiments in the field, and they rendered good services 
in gaining our and their freedom. Gen. Alexander Hamil- 
ton's opinion was decidedly in favor of the employment of 
emancipated slaves as American soldiers. (See Geo. Liver- 
more's Researches^ Gen. Jackson had black soldiers in New- 
Orleans on the 8th of January, 1S15, and they shared in the 
glory of that memorable day. TJie use ofblacTc emancipated 
soldiers was a settled revolutionary policy of our American 
patriots. (See Historic Researches on this subject, by George 
Livermore, of Boston, and see appendix as to war of 1812.) 

What so wise as to spare our white citizens and use colored 



15 

emancipated soldiers, burning to eonqnor the masters who 
have reduced them to the condition of brutes, and shut up 
heaven from them by making it a crime to teach them to read 
even the "Word of God ? 

How fit it is that this semi-barbarons chivalry should be 
beaten down in arms by those they have cruelly oppressed 
and robbed of all property and of all family ties, and left 
them, in the language of Chief-Justice Taney, in the Dred 
Scott case, with no rights that their masters were hound to 
respect. A condition worse than that of Roman or Algerine 
slaves. 

Let twenty-five or fifty thousand emancipated hlacks he 
called to arms heneath the stars and stripes of freedom, and 
the whole of the hlack iniid-sills of the South will ahandon 
their heartless oppressors, the so-called chivalry. 

POOK SOUTHERN WHITES. 

14. Five millions of " white trash," sand-hillers and clay- 
eaters in the Southern slave States, degraded, poor, ignorant, 
brutal and wicked, must be separated from the small 350,000 
slave-oligarchy that oppresses them, and, by the sword of 
freedom, they must be brought up to the standard of intelli- 
gence and moral freemen. To do this, let the process of se- 
questration, begun by General Butler, go forward as our 
armies advance, and let homesteads be furnished these white 
political serfs and bondmen of the Southern aristocracy, out 
of their plantations jnstly confiscated. Tliis policy once 
made fully known in the South, the influence and power of 
this proud and cruel caste would be destroyed forever. 

FREE STATE AND POLITICAL EMANCIPATION. 

15. Those measures will emancipate northern and western 
parties and statesmen from the slave power. 

COMPLETE EMANCIPATION — BORDER STATES. 

16. Its effect in all the border States will be to douhle the 
value of their entire realty, and convert the slaves itito intel- 
ligent, hired laborers, able to read, write and cipher, and to 
provide hy their industry for their wives and families. 
Above all, the Word of God will be opened to the benighted 
souls of these people. 

Emigration from Europe, and the North and West, with 
wealth and industry, will pour into the border States, and 



16 

the morality, wealth and prosperity of those States would be 
greatly increased. No purchase of slaves is needed, nor is it 
proper for this resuscitation of States perishing by the dry- 
rot of slavery. Our war tax of one thousand millions, and 
three hundred thousand Americans killed or maimed in bat- 
tle, will be our only offering to the Moloch of slavery. 

FOREIGN POLICY. 

17. The oligarchy of Great Britain, and the improvised 
Emperor Louis Napoleon, sympathizing with the slave-oli- 
garchy, contrary to the law of nations, to national comity 
and to our treaties of peace and commerce, have urged up 
the Southern rebellion, and are now fomenting and sustain- 
ing it by arms, by their presses, speeches, diplomacy, and by 
piratical raids on the sea from British ports, capturing and 
burning American ships. {Treaties^ 8 U. S. St. at L. 228, 
5TC), arts. 8, 9, pp. 430-1 ; Gard. Inst. 507-516, 550, 627 ; 7 
Wheat. 281, 350-356, 196 ; Vattd, B. 2, c. 18, § 318.) Our 
government ought to meet this unfriendly policy — this war 
on us — with firmness, and a bold demand for instant redress. 

The people of the loyal States, one and all, ought instantly 
to form associations for the non-consumption of British and 
French manufactures until our grievances are redressed. 

This measure, if generally adopted, would revolutionize 
France and dethrone Louis Napoleon, the self-made mili- 
tary despot of uncertain paternity, and drive the proud oli- 
garchy of Britain to despair and humility. 

EUROPEAN LIBERALS AND SUFFERERS, 

18. In the midst of the dark cloud that rises over Europe, 
and moves menacingly toward our shores, we can see light- 
ning flashes of freedom. The Emperor Alexander of Kussia, 
the ablest and most liberal sovereign of Europe, is now lib- 
erating, against the fierce hostility of his slaveholding nobility, 
more than twenty millions of slave-serfs. The sympathy of 
this royal friend of freedom and Russian interests are in 
favor of our Republic. Tlie Emperor, backed by his mighty 
armies, holds back the British Cabinet and the impi*ovised 
Emperor by military cou2) (Vetat from intervention by arms. 

The Liberator of Italy, the noble Garibaldi, Victor Hugo, 
Gaspariii, Mills, Cairnes, the Westminster Review for Octo- 
ber, 18G2, reviewing Prof. Cairnes' valuable work on Ameri- 
can and ancient slavery. Bright and Cobden, and other emi- 
nent Europeans and able journals, defend our Republic and 
the cause of freedom, of emancipation and of humanity. 



17 

As to poor and starving French and British people, let our 
ships be filled with food to overflowing, and be sent to French 
and British ports, and be freely distributed, as in Ireland, in 
1847, to save the suiFerers from starvation and death. The 
Chamber of Commerce of New- York has inaugurated this 
noble work of charity, and munificent private contributions 
have followed. Let it go on. 

GRAND TEIAL BETWEEN FKEEDOM AND DESPOTISM. 

19. Divine prophecy and tradition have declared that a 
great battle of freedom and despotism was to be fought, with 
mighty carnage and terrible destruction. So prophesied I^a- 
poleou at St. Helena. The United States have furnished the 
field of the vast war now raging along three thousand miles 
of our coasts, and which, at times, have covered one-third of 
the area of our Republic. Americans, Saxons, Celts, North- 
men, Germans, Frenchmen, French princes, Turkish officers, 
nobles and free citizens, to near one million, are joined in 
military and naval defence of the world's freedom, and of 
our Republic, and of our free institutions. Davis, Floj'd, 
Toombs, Lee and their fellow-traitors, have created a military 
despotism, and made war on free institutions. They are 
backed secretly by the Palmerston Cabinet, and by Louis 
Napoleon, and by most of the European privileged classes, 
from common interests and common sympathy. Well might 
Louis, the betrayer of his oath and of France, sympathize 
with Davis and Floyd, perjured American traitors, as both 
have ofi'ered on the blood-stained altar of despotism heca- 
tombs of slaughtered Frenchmen and Americans. 

Holy Writ declares that the war shall.be terrible, but that 
the right shall prevail, and the defenders of liberty, civil 
and religious, led and protected by Jehovah, shall triumph. 
Americans, friends of freedom, look to the pillar and cloud, 
and forward — the Red Sea of blood is before us, but the Lord 
of Hosts will lead us through it. 

CONCLUSION. 

The ways of the Lord are past finding out. We can see a 
red sea of blood only, but there is a way through it, if we 
will follow the pillar and cloud. The Lord is our light and 
our salvation, whom shall we fear? The Lord is the strength 
of our life, of whom shall we be afraid ? Above the dark 
storm-cloud the glorious light of tlie sun is shining in beauty, 
as the aeronauts tell us. So God's almighty power encircles us 



18 

on every side ; let us trust in Ilim, and use all the means he 
places in our hands to crush out this gigantic, wicked, slave- 
holders' rebellion, and we doubt not the Lord will bless iis 
with victory, with peace and with national unity. It cannot 
be tliat Davis, Stephens & Co. can found a slave empire, 
covering a large part of North America and the adjacent 
islands, the corner-stone of which is the eternal, hopeless, 
brutal slavery of many millions, with all human and divine 
knowledge shut out from their souls, and this impiously pro- 
claimed bj the so-called Yice-President Stephens, the stone 
that the builders rejected, which became omnipotent in Jesus 
Christ, God manifest in the flesh, whose millenial power is 
to cover the earth as the waters cover the oceans and seas. 



Note. — Since writing the above we have received from the author, George 
Liverraore, Esq., his invaluable "Historical Researcli," as to the opinions of the 
Founders of our Republic on negroes as slaA'es, as citizens, and as soldiers. This 
able work proves beyond question that these founders of our freedom and inde- 
pendence were in favor of universal emancipation and of employing negroes as 
soldiers of freedom, and that black battalions of emancipated slaves made ex- 
cellent soldiers. Our patriots of that day agreed with Patrick Henry who 
triumphantly asked, "May Congress not say that evert/ Hack man must fight?" 
See the above work, page 98 and onward to 215. Washington and the first 
Congress consecrated all our territories to freedom. (1 U. S. L. 50.) So did 
our Congress of 1862. 

We have also received from the authors able replies in pamphlets to Judge 
Curtis, by Charles P. Kirkland and G. P. Lowrey, Esqs., which in our judg- 
ment are complete and perfect answers. 



19 



APPENDIX. 



New-Yorli jpolicy under Governor Daniel D. Tomjpkins^ 
aftervmrds Vice-President of the United States^ and Mar- 
tin Van JBuren, late President^ and the Democratic painty 
of the State in 1814, in the war with Great Britain. 

In October, 181-1, an act of the Legislatnre of ISTew-Tork 
was passed, entitled " An act to authorize the raising of two 
regiments of men of color." (See Sess. Laws N. Y. 1814, 
pp. 22, 23.) 

This act authorized the raising of two full regiments of 
free negroes and emancipated slaves, to form a part of the 
martial power of the State, and with authority to the Gov- 
ernor to place them in the service of the United States. By 
reference to the act, it will be seen that the State of New- 
York, as well as General Jackson, acted on the revolutionary 
policy of using free negroes and emancipated slaves to con- 
quer the enemies of our Kepublic and of our free institutions. 



Ciml Code — Crimes affecting the Life of our Bepidlic — Their 
Punishment. 



TEEASON. 



Treason, by our Constitution and law, consists in levying 
war against the United States ; by an assemblage of persons 
for a treasonable object, such as a dissolution of the Union 
by force or menace ; or to compel forcibly a change of ad- 
ministration ; or to coerce the repeal of an act of Congress 
by compulsion ; or to compel officers to resign, and thus de- 
feat an act of Congress in its execution, in any State, county 
or place, such as a conspiracy by force or menace to destroy 
the Union, or to overturn any duly elected President and his 
administration. {Gard. Inst. 323*', 324, 325, 326 and author- 
ities there cited ; Const. U. S. art. 3, § 3.) 



20 

All persons haviiig knowledo;e of any such treasonable 
objects, who shall, in any way or in any degree, whether re- 
mote or near the place of assemblinir, aid in promoting such 
treasonable designs, are traitors, {Ih) So are all who ad- 
here to the enemies of the Republic, or give them aid and 
comfort. [Ih.) 1 IT. S. Si. L. 112, 118, 119.— The punish- 
ment of treason is death. 

MISPRISION or TREASON. 

Any person having knowledge of any treasonable project 
is l30und to disclose it to the President, or to a United States 
judge, or to a Governor of a State or a State judge, or lie is 
guilty of misprision of treason, and may be fined one thou- 
sand dollars and imprisoned for seven years. {Gard. Inst. 
326; 1 U.S.St. L. 112, 119.) 

OBSTRUCTION OF LAW. 

Particular acts of resistance to an act of Congress, not 
having for their object the defeat of the general execution 
of the law, in some given place, is not treason. {Gard. Inst. 
332.) 

CONSPIRACY AGAINST THE UNITED STATES. 

Conspiracy to commit treason, or to aid in it, by word, 
deed, printing or writing; by a governor's message; by a 
speech in Congress, in a legislature, or through the medium 
of a newspaper or other publication ; or by any other' mode, 
whether by ju-ivate persons or officials, is now a misdemeanor, 
by act of Congress, passed on the 31st day of Ju'v, 1861. 
(U. S. SL L. for 1861, p. 281.) The original act was drawn 
by the author, and it was meant to reach, and does reach, 
all and every act, word, deed, printing, writing or speaking, 
done, spoken or uttered, to promote the forcible severance of 
the Union, in any contingency, or defeat it, or impede any 
power or authority of the United States government. The 
punishment is a fine not exceeding five thousand dollars, and 
imprisonment not exceeding six years, both or either. This 
is a humane law, and is intended to prevent the commission 
of treason by punishing, as a misdemeanor, the incipient 
conspiracy to commit treason, and thus render capital pun- 
ishment unnecessary. 



